N

Introduction

The question can be interpreted as follows; that laws ought to be obeyed to the
extent that their contents and requirements are morally correct. Essentially,
whether there is a prima facie moral obligation to obey the law and as T.H. Green
put it what are the ‘’true grounds or justification for obedience to the law’’?1 Thus, it
is a question of ‘political obligation’ or the moral requirement to obey the law. The
aim of this paper is to discuss the reasons for and the reasons against the aforesaid
question. There are those who advocate that there are grounds for justifying
political obligation such as utilitarian, gratitude, consent, naturalist and fair play
theories.

Utilitarianism and Obligation

A utilitarian account of political obligation justifies the obligation to obey the law by
appealing to the favourable consequences of obeying the law and or negative
implications of disobeying the law. This account is essentially consequentialist.
Individuals are assumed to act so as to increase pleasure and minimize pain, these
acts being measured in terms of utility or use-value. 2The act utilitarian would judge
a law to be right if it produces at least must pleasure over pain as any other act.
Rule utilitarianism measures a law if it conforms to a rule which, if it is by and large
followed produces good consequences. Institutions and legislation can be judged by
the yardstick of ‘the greatest happiness’ If the question is posed, what would
happen if everyone disobeyed the law? For Utilitarians disobedience to the law
would be disastaourous, since a government is necessary to maintain the good and
order. Thus individuals choose to follow the law say for instance in their work place
because in doing so it is more advantageous than not doing so. This is quite true, as
the founding father of utilitarianism endorsed, that humans are self interested
creatures, that are intrinsically harm avoiding. However, the theory does have many
drawbacks and a few are worth mentioning. Utilitarianism does not exactly promote
a general theory of political obligation. The test put forward, cannot derive a moral
obligation to obey the law, rather derive specific general obligations which will
optimise utility.This avoids the problem of political obligation by asking instead,
each individual whether each law has a moral reason to be followed. M.B.E Smith

1
T H GREEN lectures on the principle of political obligation see Stanford encyclopaedia for
ref
2
Political ideologies an introduction Andrew Haywood page 51: john Horton political
obligation Macmillan pages 51-53
criticises the utilitarian standpoint in arguing that the test put forward is too
general. everyone committed a certain act and the consequences were disastrous
and conclude from that that there is a prima facie obligation to not commit such
acts, we could end up with all sorts of absurdities. For instance, if everyone at
dinner at 6pm, then many essential services are not available. Should we then say
that there is a prima facie obligation not to produce food? I quite rightly agree with
Smith. I illustrate with an example if my aim is always to maximise the greatest
happiness of the greatest number, then obligation seems to have little or no binding
force. If I can achieve more good by giving charity money than by paying for my
debts then that is what I should do, regardless of how much money I owe to my
bank.

Consent and Obligation

The consent argument holds that we have a moral obligation to obey because we
have agreed to obey the law. There are two ways that one’s consent could be given:
(a) express consent and implicit consent. One has shown expressed consent when
one has explicitly consented to an agreement. Most citizens of a country have never
expressed consent to obey the laws. Thus, there are those who say one has given
one’s implicit consent. Implicit consent occurs when one’s actions or inactions have
expressed consent to an agreement. For example, Plato says that one gives their
implicit consent to obey the laws of the land when one is a resident of the land One
is free to move to some other land, if one does not wish to obey the law of the land.3
Moreover H. Beran who claims

“Native born citizens implicitly agrees to obey the state when they cease to be
political minors and accept adult status.” 4

On this view, the moral requirement to obey the law is justified byt eh voluntary act
of the citizens of Great Britain. People are thus obligated to support and comply
with poltical authority as they personally consented to its authority over them In
Beran’s words ‘agreeing to do x, gives rise to a moral obligation to do x’. In this way
the theory which Beran defends, subsumes that if one votes in an election he is
validly consenting to comply with the laws enacted, which is a moral obligation and
a moral right just like when one seeks to uphold a promise.5

Several objections have been applied to this argument. It is argued that few people
have given the kind of actual or express conset that can ground for a general
obligation to obey the law, neither theoretical or tacit conset will supply the defect.
Beran on the other hand argues that states should require their members openly to

3
Plato (2000). The Trial and Death of Socrates, 3rd ed. G. M. A. Grube, trans. Indianapolis:
Hackett Publishing Co. page 54
4
H. Beran page 262
5
Benra same as n4
undertake an obligation to obey or reject the law. In his view, those who reject the
law can leave the territory seceding to form a new state with like minded people or
go to a state where they will adhere to the laws.6 One can argue that this kind of
action is not probable .many people live where they live because they are not free
to move elsewhere. They do not have this freedom to uproot their lives in this way
that implies a free choice of consent. Mark Murphy argues that ‘surrender of
judgement is a kind of consent’ in the usual sens of voluntary agreement or
acceptance. It can be argued under Murphy’s view that people select MPs to ‘take
the place of his or her own’ practical judgements with regard to (a) sphere of
judgement’ We allow others who will represent our moral views and will make
decisions on our behalf which we would otherwise see as morally correct and thus
we are morally bound to obey such rules when enacted on our behalf.7 M.B.E. Smith
holds that consent is a speech act, he denies that one can give their implied
consent in this way that does not involve speech. I agree with this criticism since an
implicit consent cannot be held to understand the act of voting for instance, citizens
do not perceive such acts in that way.8 But other adherents to the theory like
Plamenatz or Steingerger stress that the theory is interpreted too narrowly.9 Instead
they maintain that acts such as voting or any form of social participation like calling
on the services of an institution should count as consent. But realistically, in calling
the emergency service , a person is bound logically to follow the rules of that
service provider, i.e. that when you call upon paramedics they will administer help
in the manner they best know , I have called on their expertise but not that I want
or should be bound by all their commands. Margret Gilbert puts forward the notion
of ‘joint commitments’ which need not arise voluntarily, under this idea it is
necessary for one to understand the undertaking at hand,e.g. the example of the
paramedic and one must be ready to be committed jointly in order for one to accrue
political obligation.10

Obligation and Morality

6
Beran 1977 page 264
7
Mark Murphy Murphy, Mark (1999). “Surrender of Judgment and the Consent Theory of
Political Obligation.” Law and Philosophy, 16: 115-43; reprinted in Edmundson, ed., The Duty
to Obey the Law.

8
Smith, M. B. E. (1973). “Is There a Prima Facie Obligation to Obey the Law?” Yale Law
Journal, 82: 950-76; reprinted in W. A. Edmundson (ed.), The Duty to Obey the Law.

9
Steinberger, Peter (2004). The Idea of the State. Cambridge: Cambridge University Press.
2004, p. 218)

10
Gilbert, Margaret2006). A Theory of Political Obligation. Oxford: Oxford University Press.
2006, p. 290).
If laws should only be obyed simply because they are morally correct, then it is an
obligation to obey regardless of the content of the particular law.